Hatch, Camp Respond to Latest HHS Letter on Waiving Work Requirements

HHS Letter Reinforces View that the Administration Does Not Have Authority to Waive Work Requirements

WASHINGTON - Late last night, HHS Secretary Sebelius responded to a request by Orrin Hatch (R-UT), the Ranking Member of the Senate Finance Committee, and Dave Camp (R-MI), the Chairman of the House Ways and Means Committee, for further information about HHS’ statutory justification for claiming they had authority to waive welfare work requirements.  The following are statements from Chairman Camp and Ranking Member Hatch about Secretary Sebelius’ letter:

Ranking Member Hatch:
 
“This response wasn’t a response – it was a dodge and a deflection.  The simple fact is that the Department of Health and Human Services does not have the authority to waive these work requirements.  The assertion that this Administration is pro-work is undercut by the White House’s failed economic policies that’s left our unemployment rate over eight percent for 41 consecutive months. It’s up to the Congress to stop this Washington power-grab.”

Chairman Camp:
 
“The Secretary’s response offers no substantive explanation to justify the agency’s actions.  HHS has taken it upon itself to invent this supposed waiver authority.  That is wrong.  It is not within the letter, the spirit, or the intent of the law.  If this Administration wants to have the authority to waive work requirements, they should submit a legislative proposal to Congress to change the law, and not attempt to do so by administrative fiat.”    
 
Analysis
 
The HHS letter confirms that the law would need to be changed to create waiver authority.
 
 “For years, Republican and Democratic Governors have requested more flexibility in implementing welfare reform…In 2005, 29 Republican Governors requested ‘(i)ncreased waiver authority, allowable work activities, availability of partial work credit’…”
 “As noted earlier, when Congress considered legislation reauthorizing the TANF program in 2005, Governors from across the country also expressed their support for more flexibility for states in the TANF program….Governors specifically endorsed Senate legislation, which would have allowed many states to receive waivers far broader than we are allowing now.”

Note: Waiver authority was not created in statute in 2005 or the years since then, meaning the situation when Governors made these requests – i.e. that there is no authority to waive work requirements – remains the same today .
 
The HHS letter continues to argue that because State plans (which all sides agree can be waived) simply describe work requirements, that therefore work requirements can be waived.  This is simply incorrect.
 
In an “attachment” to the Secretary’s letter, HHS continues to argue that section 402 includes a “requirement” that States “(e)nsure that parents and caretakers receiving assistance under the program engage in work activities in accordance with section 407.”

Actually, that’s not what section 402 says.  Below is the text of relevant part of Section 402.  Of note, section 402 does not include a “requirement” other than that States must describe how they intend to implement the work requirements that appear in section 407.  Section 407, which HHS admits cannot be waived since they find that only section 402 provisions may be waived, goes into great detail on how work is defined, how many hours of work must be completed, and by what share of the caseload:
 
Sec. 402. [42 U.S.C. 602] (a) In General.—As used in this part, the term “eligible State” means, with respect to a fiscal year, a State that, during the 27–month period ending with the close of the 1st quarter of the fiscal year, has submitted to the Secretary a planthat the Secretary has found includes the following:

(1) Outline of family assistance program.—

(A) General provisions.—A written document that outlines how the State intends to do the following:

…(iii) Ensure that parents and caretakers receiving assistance under the program engage in work activities in accordance with section 407.

(B) Special provisions.—

(i) The document shall indicate whether the State intends to treat families moving into the State from another State differently…

(ii) The document shall indicate whether the State intends to provide assistance under the program to individuals who are not citizens of the United States…

(iii) The document shall set forth objective criteria for the delivery of benefits…
 
HHS says “trust us” -- we will only approve “good” waivers.

Secretary Sebelius’ letter repeatedly suggests that HHS will approve only “good” waivers:

“If a Governor proposes a plan that undercuts the work requirements established in welfare reform, that plan will be rejected.”

“No plan that undercuts the goal of moving people from welfare to work will be considered or approved.”

“We will continue to hold states accountable for moving people from welfare to work.”

(W)e will not accept any changes that undercut employment-focused welfare reforms that were signed into law fifteen years ago.”

Yet this is in direct contrast with the “guidance” HHS issued just last week, which described how HHS could approve waivers that, among other things, resulted in more education in lieu of work:

“The following are examples of projects that states may want to consider….Projects that test systematically extending the period in which vocational educational training or job search/readiness programs count towards participation rates.”

Research has consistently shown that what works to improve the work and earnings of welfare recipients is work, or work in combination with education and training, as opposed to “education only” approaches HHS appears to be contemplating.

HHS‘ guidance went on to note the examples of possible waivers it listed are “not a comprehensive list, and HHS will consider other projects consistent with the statute and the guidance provided in this (Information Memorandum).”

Finally, the idea that HHS will approve only “good waivers” that result in increased work is undercut by HHS’ insistence in their July 12 guidance that waivers may not result in less welfare receipt: “The Secretary will not approve a waiver for an initiative that appears substantially likely to reduce access to assistance or employment for needy families.”  “Assistance” generally means welfare checks supported by TANF funds.

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